12 December 2011

Umberto Eco, AUSA

Popehat | Ken | Reminder: Oh, Won’t You Please Shut Up?

Here’s how it works. The feds identify some fact that they can prove. It need not be inherently incriminating; it might be whether you were at a particular meeting, or whether you talked to someone about the existence of the investigation. They determine that they have irrefutable proof of this fact. Then, when they interview you, they ask you a question about the fact, hoping that you will lie. Often they employ professional questioning tactics to make it more likely you will lie — for instance, by phrasing the question or employing a tone of voice to make the fact sound sinister. You — having already been foolhardy enough to talk to them without a lawyer — obligingly lie about this fact. Then, even though there was never any question about the fact, even though your lie did not deter the federal government for a microsecond, they have you nailed for a false statement to a government agent in violation of 18 USC 1001. To be a crime under Section 1001, a statement must be material — but the federal courts have generally supported the government’s position that the question is not whether a false statement actually did influence the government, but whether it was the sort of false statement that could have influenced the government.

Hence, the government’s chickenshit false statement trap works — even though the government agents set it up from the start. Now, however weak or strong their evidence is of the issue they are investigating, they’ve got you on a Section 1001 charge — a federal felony. In effect, they are manufacturing felonies in the course of investigations.
This sounds like something out of Umberto Eco's new novel The Prague Cemetery, the protagonist of which is a double agent espionateur and forger who is very concerned with making "true fakes." If Eco wrote a novel set in 21st century America, I can imagine a modern Baudolino explaining to the reader how a Section 1001 charge is legitimate and moral thing to do.

(Note to lawmen who have not read Eco — at no point should you be happy to have a regime you participate in compared to something one of his characters would like.)

No comments:

Post a Comment